The Supreme Court came down on the wrong side of election integrity on Monday when it ruled against an Arizona state law intended to keep noncitizens from disenfranchising other voters with their fraudulent votes.
But the decision was limited in its scope and is not a complete loss, although it is already being misreported in the press as a blow to voter ID laws. This was not a voter ID decision.
In 2004, Arizona voters overwhelmingly approved a referendum that had two major components: voter ID for in-person voting and a requirement that anyone registering to vote provide proof of citizenship. The voter ID provision was not before the Supreme Court and is alive and well in Arizona.
In a decision written by Justice Antonin Scalia and joined by six other justices, however, the Supreme Court said that Arizona must “accept and use” the federal mail-in voter registration form specified by the federal National Voter Registration Act (the Motor Voter law). Arizona’s requirement that proof of citizenship be submitted with the federal form is preempted.
However, there were a number of caveats to the Court’s opinion. First of all, anyone registering to vote in Arizona can use either the federal form or the state’s voter registration form. The Court’s decision applies only to the federal form, so Arizona can continue to require proof of citizenship for anyone who registers using the state form.
The Court specifically noted that under our Constitution, states have the exclusive right to determine the qualifications of voters in federal elections, and Arizona can deny registration to anyone who submits a federal form if it has other information in its possession that establishes the ineligibility of the applicant.
The Court also stated that Arizona can request the U.S. Election Assistance Commission (EAC), the federal agency responsible for regulating the federal voter registration form, to include a state-specific instruction for Arizona including the proof of citizenship requirement. Arizona did that in 2005, and the four EAC commissioners divided 2–2 on the request, so the EAC took no action. If Arizona resubmits the request and the EAC refuses to include the instruction, Arizona can sue the EAC.
Scalia pointed out that Arizona could assert that such a refusal “would be arbitrary,” since the EAC accepted a similar request from Louisiana that state residents who don’t have a driver’s license, ID card, or Social Security number attach additional documentation to the federal form.
Both Justice Thomas and Justice Alito had a better reading of the Motor Voter law in their dissents. Thomas argued that while Arizona must accept and use the form as part of its registration process, the state is free to request whatever additional information is necessary to determine the qualifications of a voter. Alito argued that the Court misread an ambiguous statute and interfered with the constitutional power of states to determine the qualifications of voters.
As I explained in my book, Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books, 2012), there is a real problem of noncitizens registering and voting illegally in our elections, particularly in states such as Arizona that have large populations of illegal aliens. This is a problem that needs to be solved, and requiring proof of citizenship from individuals registering to vote is the right way to stop this violation of the integrity of our elections.